No. 1-06-1277 FIRST DIVISION
Filed: 6-29-07
BLUESTAR ENERGY SERVICES, INC., ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
)
ILLINOIS COMMERCE COMMISSION, )
) No. 05 CH 13448
Defendant-Appellee) )
)
)
)
(Ameren Corporation, ) Honorable
) William O. Maki,
Defendant and Intervenor-Appellee). ) Judge Presiding.
JUSTICE ROBERT E. GORDON delivered the opinion of the court:
The issue presented in this case is whether the Freedom of Information Act (FOIA) (5
ILCS 140/1 et seq. (West 2004)) requires the Illinois Commerce Commission (ICC) to disclose
material provided to it by Ameren Corporation (Ameren) pertaining to a settlement agreement
disclosed in confidence to the ICC, or whether such information is exempt from disclosure by
section 7 of the FOIA (5 ILCS 140/7 (West 2004)).
BACKGROUND
Ameren Corporation (Ameren) acquired Illinois Power Company (Illinois Power)1 in a
transaction approved by the Illinois Commerce Commission (ICC), in 2004. Ameren is the
parent corporation of several subsidiaries that provide utility service to Illinois residents.
1
Illinois Power Company has been doing business as AmerenIP since its acquisition by
Ameren.
No. 1-06-1277
Before Ameren’s acquisition of Illinois Power could be completed, the ICC’s approval
was required. Ameren’s proposed acquisition of Illinois Power became the subject of an ICC
acquisition proceeding. During the course of the acquisition proceeding, the Coalition of Retail
Energy Suppliers (Coalition), an organization comprised of unregulated affiliates of utilities,
intervened and objected to Ameren’s acquisition, citing concerns relating to barriers to the
development of a competitive retail electricity market in the Ameren utilities’ service territories.
At some point during the course of the acquisition proceeding, Ameren and the Coalition
entered into a settlement agreement, resulting in the Coalition’s withdrawal of its objections to
Ameren’s acquisition of Illinois Power. Near the close of the acquisition proceeding, staff, the
ICC’s investigatory body, sought copies of the settlement agreement through discovery requests,
but Ameren resisted and the agreement was not filed in the acquisition proceeding. The ICC
approved Ameren’s acquisition of Illinois Power on November 12, 2004.
BlueStar, an alternative retail electric supplier, who was not a party to the acquisition
proceeding, initiated a separate proceeding before the ICC, by filing a complaint against Ameren
and Ameren’s Illinois public utility affiliates, including Illinois Power, seeking to review the
terms of the settlement agreement between Ameren and the Coalition. Ameren and its affiliates
filed a motion to dismiss based on BlueStar’s failure to state a viable claim. In response to this
joint motion, Staff noted that BlueStar’s complaint did not cite any provision of the Public
Utilities Act (Act), (220 ILCS 5/1-101 et seq. (West 2004)) ICC’s rules, or any other authority
that would entitle BlueStar to obtain the agreement. Staff also sought a copy of the agreement
from Ameren at the same time, citing its authority under sections 5-101, 7-101 and 7-105 of the
Act (220 ILCS 5/5-101, 220 ILCS 5/7-101, 7-105 (West 2004)). Ameren produced the
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agreement to staff, upon their representation that the agreement would remain confidential
pursuant to section 5/5-108 of the Act (220 ILCS 5/5-108 and the ICC’s rules. Carmen Fosco, a
staff attorney, filed a letter in the proceeding initiated by BlueStar that stated that the agreement
would be designated as confidential. On July 13, 2005, BlueStar’s complaint was dismissed
based on BlueStar’s failure to state a viable claim.
On July 18, 2005, BlueStar sent a FOIA request to the ICC, requesting “all documents
referenced in the attached letter of April 15, 2005, by Carmen Fosco, Staff Attorney, produced
by Ameren Corporation (or any affiliate thereof) to Staff.” ICC denied BlueStar’s FOIA request
on July 27, 2005, pursuant to FOIA section 7(1)(g) stating “you have requested trade secrets and
commercial or financial information obtained from a person or business where the trade secrets
or information are proprietary, privileged or confidential, or where disclosure of the trade secrets
or information may cause competitive harm.” BlueStar appealed to the chairman of the ICC,
who upheld the denial but granted BlueStar the right to seek judicial review pursuant to section
11 of the FOIA. The ICC also stated:
“[T]he records were submitted to Commission staff by an entity that faces
competition and there is the possibility of harm to a competitive position. The
ability of Commission staff to obtain information would be impaired if all
information received by staff were to become public. See Section 5-108 which
makes disclosure of certain information a Class A misdemeanor and Section 4-
404 of the Public Utilities Act, which requires the Commission to ‘provide
adequate protection for confidential and proprietary information furnished,
delivered or filed by any person, corporation or other entity *** .”
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On August 11, 2005, BlueStar filed a complaint against the ICC in the circuit court of
Cook County, claiming that the ICC violated the FOIA by withholding the agreement between
Ameren and the Coalition from public disclosure. Ameren intervened on September 8, 2005.
BlueStar’s original complaint was dismissed without prejudice; BlueStar then filed an amended
complaint on October 4, 2005. In its answer to the amended complaint, the ICC claimed that the
requested documents were properly withheld from production pursuant to the disclosure
exemptions set forth in sections 7(1)(a), (g), and (y) of the FOIA (5 ILCS 140/7(1)(a),(1)(g),
(1)(y) (West 2004)).
On November 2, 2005, the defendants filed a joint motion to stay discovery and for
summary judgment. In support of the motion for summary judgment, the defendants submitted
affidavits of staff attorney, Carmen Fosco; managing associate general counsel for Ameren,
Edward Fitzhenry; and Harold Stoller, the director of the ICC’s Energy Division. BlueStar
moved the trial court to order the ICC to produce an index of the withheld documents, to which
the ICC agreed. The ICC provided an index that included a description of the content of each
document and the exemption claimed for each. The trial court granted the motion to stay
discovery noting, “[T]here is potential if discovery is conducted that confidential information
may be divulged in violation of the act. In other words, you have public officials here that
would actually be subject *** to criminal sanctions *** .” The trial court also set a date for
argument on defendants’ joint motion for summary judgment.
Following oral argument, the circuit court ordered defendants to produce the Ameren-
Coalition agreement for an in camera inspection. After inspection of the documents, the trial
court granted defendants’ motion for summary judgment, finding that the Ameren-Coalition
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agreement was properly exempt from disclosure pursuant to section 7(1)(g) of the FOIA (5 ILCS
140/7(1)(g) (West 2004)), which exempts public records containing “[t]rade secrets and
commercial or financial information obtained from a person or business where the trade secrets
or information are proprietary, privileged or confidential, or where disclosure of the trade secrets
or information may cause competitive harm.” The trial court found against defendants’ assertion
that the documents were exempt from the FOIA under subsections (1)(a) and (1)(y) of section 7.
BlueStar appeals from the trial court’s granting of summary judgment to defendants. We
affirm.
ANALYSIS
We must determine whether the trial court properly granted summary judgment to
defendants because the requested information was exempt from disclosure.
“Summary judgment is appropriate when there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law.” Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Summary judgment should only be granted if
the movant’s right to judgment is clear and free from doubt. Outboard Marine Corp., 154 Ill. 2d
at 102. Furthermore, summary judgment should only be granted when the pleadings,
depositions, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
of law. Delaney Electric Co. v. Schiessle, 235 Ill. App. 3d 258, 263 (1992). "In making this
determination the pleadings, depositions, admissions, exhibits, and affidavits are to be construed
strictly against the movant and liberally in favor of the opponent." Schiessle, 235 Ill. App. 3d at
263. "In addition, the court must draw all reasonable inferences from the record in favor of the
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nonmoving party." Schiessle, 235 Ill. App. 3d at 264. However, although the court may draw
inferences from undisputed facts, summary judgment should be denied where reasonable persons
can “draw divergent inferences from undisputed facts.” Outboard Marine Corp., 154 Ill. 2d at
102. We conduct a de novo review on appeals from summary judgment rulings. Crum &
Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384 (1993).
As noted, BlueStar made a FOIA request upon the ICC for disclosure of the settlement
agreement made between Ameren and the Coalition during the ICC’s acquisition proceeding.
The purpose of the FOIA is to open governmental records to the light of public scrutiny.
Baudin v. City of Crystal Lake, 192 Ill. App. 3d 530, 534-35 (1989). The FOIA provides, in
pertinent part:
“Pursuant to the fundamental philosophy of the American constitutional
form of government, it is declared to be the public policy of the State of Illinois
that all persons are entitled to full and complete information regarding the affairs
of government and the official acts and policies of those who represent them as
public officials and public employees consistent with the terms of this Act. Such
access is necessary to enable the people to fulfill their duties of discussing public
issues fully and freely, making informed political judgments and monitoring
government to ensure that it is being conducted in the public interest.” 5 ILCS
104/1 (West 2004).
“There is a presumption [under the FOIA] that public records be open and accessible."
Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007, 1011 (1994), citing Carbondale
Convention Center, Inc. v. City of Carbondale, 245 Ill. App. 3d 474, 476 (1993), citing Bowie v.
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Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 378 (1989). Section
7 of the FOIA provides an extensive list of exemptions to disclosure that are to be narrowly
construed. Cooper, 266 Ill. App. 3d at 1012. When a public body receives a proper FOIA
request, it must comply with that request unless one of the narrow statutory exemptions set forth
in section 7 of the FOIA applies. Illinois Education Ass’n v. Illinois State Board of Education,
204 Ill. 2d 456, 463 (2003), citing Lieber v. Board of Trustees of Southern Illinois University,
176 Ill. 2d 401, 407-08 (1997); 5 ILCS 140/3, 7 (West 2000).
“ ‘If the public body seeks to invoke one of the exemptions in section 7 as grounds for
refusing disclosure, it is required to give written notice specifying the particular exemption
claimed to authorize the denial.’ ” Illinois Education Ass’n, 204 Ill. 2d at 464, quoting Lieber,
176 Ill. 2d at 408; 5 ILCS 140/9(b) (West 2000). Thereafter, the party seeking disclosure of
information under FOIA can challenge the public body’s denial in the circuit court. Cooper, 266
Ill. App. 3d at 1012. The burden of proof at the trial level is on the agency to establish that the
documents in question are exempt from disclosure. Cooper, 266 Ill. App. 3d at 1012, citing
Wayne County Press, Inc. v. Georgia Isle, 263 Ill. App. 3d 511 (1994), citing Baudin, 192 Ill.
App. 3d at 535. “ ‘To meet this burden and to assist the court in making its determination, the
agency must provide a detailed justification for its claim of exemption, addressing the requested
documents specifically and in a manner allowing for adequate adversary testing.’ ” (Emphasis in
original.) Illinois Education Ass’n, 204 Ill. 2d at 464, quoting Baudin, 192 Ill. App. 3d at 537.
Section 11(f) of the FOIA also requires the trial court to conduct whatever in camera inspection
of the requested records it finds appropriate to determine whether the records or any part of them
may be withheld under the Act. Baudin, 192 Ill. App. 3d at 535.
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In the case at bar, the trial court conducted an in camera inspection of the information
sought by BlueStar and determined that the information was exempt from disclosure under
section 7(1)(g) of the FOIA because the subject documents contain “trade secrets and
commercial or financial information.” We agree.
The FOIA exempts “ ‘ [t]rade secrets and commercial or financial information obtained
from a person or business where such trade secrets or information are proprietary, privileged or
confidential.’ ” Roulette v. Department of Central Management Services, 141 Ill. App. 3d 394,
399 (1986), quoting Ill. Rev. Stat., 1984 Supp., ch. 116, par. 207(g). “The Illinois legislature
intended that the term trade secret would be construed broadly. The bill’s authors included the
trade secret exemption because they did not wish to discourage private parties from doing
business with the State.” Roulette, 141 Ill. App. 3d at 399-400. The term trade secret in the
context of the FOIA has been interpreted to include information that (1) would either inflict
substantial competitive harm or (2) make it more difficult for the agency to induce people to
submit similar information in the future. Roulette, 141 Ill. App. 3d at 400, citing General
Electric Co. v. United States Nuclear Regulatory Comm’n, 750 F.2d 1394, 1398 (7th Cir. 1984).
Although the settlement agreement between Ameren and the Coalition does not contain
trade secrets in the conventional sense, it is confidential information received by a government
agency from an entity that the agency regulates. As noted, Ameren resisted the ICC’s attempts
to discover the settlement agreement in the context of the acquisition proceeding. After
Ameren’s acquisition of Illinois Power was approved by the ICC, staff sought the settlement
agreement in the context of the proceeding initiated by BlueStar. Ameren willingly disclosed the
settlement agreement to the ICC only after it agreed to treat the disclosures as confidential.
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Disclosure of the information after the ICC’s representation that the documents would not be
disclosed would discourage Ameren and other similarly situated organizations from providing
the ICC with similar information in the future. Since disclosure would have a chilling effect
upon the ICC’s ability to receive similar information in the future, the Ameren-Coalition
settlement agreement should be exempt from disclosure.
Furthermore, it is undisputed that had the agreement not been disclosed to the ICC,
BlueStar would have had no claim to the agreement. It is also undisputed that the ICC needs to
be able to procure the type of information that is at issue in this case to sufficiently regulate the
public utility industry in Illinois. See 220 ILCS 5/5-101 et seq. (West 2004) (giving the ICC
authority to review records relating to regulated public utility operations). We have already
noted that disclosure of the type of information sought here would have a chilling effect on the
ICC’s ability to receive similar information in the future. FOIA should not be used to subvert
the ICC’s ability to regulate the public utilities sector, by deterring public utilities from candidly
disclosing information pertinent to the ICC’s regulatory function.
We next address BlueStar’s argument that the trial court erred by staying discovery
pending the resolution of defendants’ joint motion for summary judgment. "A trial court is
vested with broad discretion in ruling on discovery matters, and the exercise of such discretion
will not be interfered with on appeal unless there has been a manifest abuse of such discretion."
Hanes v. Orr & Associates, 53 Ill. App. 3d 72, 74 (1977).
We conclude that the trial court did not abuse its discretion by staying discovery pending
resolution of defendants’ joint motion for summary judgment. We are guided by the following
principle in drawing this conclusion: "The legislature patterned the Illinois law after the Federal
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Freedom of Information Act [citation] and case law construing the Federal statute should be used
in Illinois to interpret our own FOIA.” Cooper, 266 Ill. App. 3d at 1012, citing Roulette, 141 Ill.
App. 3d at 400, citing 83d Ill. Gen. Assem. House Proceedings, May 25, 1983, at 184.
As noted, “in order to prevail on a motion for summary judgment in a FOIA case, the
defending agency has the burden of showing that its search was adequate and that any withheld
documents fall within an exemption to the FOIA.” Carney v. United State Dept. of Justice, 19
F.3d 807, 812 (2d Cir. 1994). “Affidavits or declarations supplying facts indicating that the
agency has conducted a thorough search and giving reasonably detailed explanations why any
withheld documents fall within an exemption are sufficient to sustain the agency’s burden.”
Carney, 19 F.3d at 812. “Affidavits submitted by an agency are ‘accorded a presumption of
good faith *** .’ ” Carney, 19 F.3d at 812. “[A]ccordingly, discovery relating to the agency’s
search and the exemptions it claims for withholding records generally is unnecessary if the
agency’s submissions are adequate on their face.” Carney, 19 F.3d at 812. When this is the
case, the trial court may “forgo discovery and award summary judgment on the basis of
affidavits.” Carney, 19 F.3d at 812.
In order to justify discovery once the agency has satisfied its burden, the requestor must
make a showing of bad faith on the part of the agency sufficient to impugn the agency’s
affidavits or declarations, or provide some tangible evidence that an exemption claimed by the
agency should not apply or summary judgment is otherwise improper. Carney, 19 F.3d at 812.
Here, the trial court determined that the affidavits and the index provided by the ICC to
BlueStar in the trial court proceeding were insufficient. The trial court then ordered an in
camera inspection of the contested material. The court’s denial of discovery was not an abuse of
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discretion. FOIA cases should be handled on motions for summary judgment, once the
documents at issue are properly identified. Miscavige v. Internal Revenue Service, 2 F.3d 366,
369 (11th Cir. 1993). The trial court properly stayed discovery and conducted its own in camera
inspection of the documents to determine if the material fell within the exemptions claimed by
the ICC and found that they did.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
We find that the settlement agreement sought by BlueStar falls within an exemption to FOIA
because the ICC agreed not to disclose the settlement agreement and the disclosure of the
agreement would significantly impair the ICC’s ability to deal with entities similarly situated to
Ameren in the future. We also find that the trial court did not abuse its discretion by staying
discovery pending the resolution of defendants’ joint motion for summary judgment.
Affirmed.
McBRIDE, P.J. and GARCIA, J., concur.
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